Getting the Notice Right

1 November 2013

In an appeal decision notice of 31 October 2013 a Leeds City Council enforcement notice was found to be a nullity for being imprecise. The Enforcement notice, issued on 31 May 2013, alleged the following breach of planning control:

“The undertaking of excavations and alterations to the levels of the land, the stationing of a storage container and the creation of a hardstanding track”.

The requirements of the notice were to:

“Step 1: Excavate the unauthorised access track and hardstanding throughout the site to its full depth and remove all materials used to construct the surface of the access road and hardstanding from the site;

Step 2: Remove the storage container and any associated fixtures and fittings from the land; and

Step 3: Where unauthorised excavations have taken place on the land, re-profile the levels of the land to how the levels of the site were prior to the unauthorised works taking place”.

The appeals were made on grounds set out in s174(2)(f) and (g) of the Town and Country Planning Act 1990. One of the three appeals were also made on s174(2)(a) grounds.

Mr. John Braithwaite (Inspector) found that the notice was a nullity, essentially because the notice referred to one container, whereas in fact there were four storage containers on the land. He also found the notice to be imprecise in terms of the location and extent of ‘excavations and alterations to the levels of the land’.

As far as the numbers of containers were concerned, evidence apparently suggested that these four containers were stationed on the land at the time of issuing the notice. The decision notice also says that the difference in the number of containers was brought to the Council’s attention at the time of the site visit for the Written Representations appeal and in a letter dated 18 October.

The Inspector made reference to the case of Miller-Mead v MHLG [1963] JPL 151 where Lord Justice Upjohn stated that the test in deciding whether an enforcement notice satisfied the statutory requirement must be “Does the notice tell him fairly what he has done wrong and what he must do to remedy it”. Applying the Miller-Mead principles to the present case, the Inspector decided that reference to the storage container in the alleged breach could not be deleted because its stationing on the land contributed to the reasons for issuing the notice.

He decided that the breach could not be corrected to refer to a specific container in a specific location because an assessment of the harm caused by this particular container could be influenced by the presence of the other three containers on the land and this had not been address by either main party. He found that the alleged breach of planning control was imprecise and that the Appellants could not know what they had done wrong and what they had to do to remedy the situation. He felt that the notice could not be corrected without causing injustice to one or both of the main parties and therefore regarded the notice to be a nullity.

What we can learn:

When a notice is found to be a nullity, all the hard work preceding the issuing of the notice and the work that had gone into appeal preparation, comes to nought. It is therefore important to analyse the cause, so everyone can learn from this unfortunate situation. Without being privy to communications throughout the Council’s investigation of the alleged breach or the appeal documents, any analysis can only be based on deductions.

One possible explanation of the appeal outcome is that there was in fact only one container on the site at the time of the investigative site visits and the day of serving the notice, but the Council either did not possess the evidence or failed to advance its evidence to prove this. Either of these scenarios would be unsatisfactory. In any event, the Inspector decided on the basis of the evidence before him, that the containers were in situ at the time of issuing the notice.

Presuming there were in fact four containers on site at the time of issuing the notice, the investigating officer would probably have observed the four containers in situ during his/her investigative visits leading to the issuing of the notice. If he/she knew about the other three containers but the person responsible for issuing the notice did not, there was clearly an error in communication at the stage of drafting the notice.

It is also entirely possible that the additional containers appeared after the investigative site visits but before issuing the notice. It is good practice for enforcement officers to do a site visit on the day of issuing the notice and to take photographic evidence at that time. If such a site visit was carried out, the officer would have spotted the additional containers. In that scenario the notice could have been varied after issuing to either include the other containers or make clear which container was referred to and why that container in particular, caused harm.

Despite what may have gone before, what raises serious concern in my mind is the fact that the issue of the number of containers did not come to light during appeal preparations, or if it did, was not addressed.

Unsatisfactory as this appeal outcome is, and without having a real understanding of exactly where things went wrong, this case is not unique and raises important issues in planning enforcement. It would do no harm for planning enforcement officers to learn from this case to be clear on facts and to gather evidence at every stage. Equally important, is not to neglect appeal preparation, and to give careful consideration to the submission of evidence.

For planning enforcement assistance at every stage of the planning enforcement process, including site visits and appeals, contact izindi@ivylegal.co.uk.